Published on:

Constructive Abandonment pursuant to DRL

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2006 NY Slip Op 50882(U)
N.B., Plaintiff,
v.
R.B., Defendant.
19965/2004.
Supreme Court of the State of New York, Queens County.
Decided May 11, 2006.
ESTHER M. MORGENSTERN, J.
FINDINGS of FACTS

Plaintiff is seeking a Divorce on the ground of Constructive Abandonment by the Defendant pursuant to DRL §170 (2). The Plaintiff alleges that commencing on January 10, 2003 and continuing for more than one year the Defendant refused to engage in sexual relations with the Plaintiff. The parties were married on June 16, 1995 in the State of New York. There is one child of the marriage, K., who is ten years of age (b. March 19, 1996). At trial, the Plaintiff was 41 years of age and the Defendant was 39 years of age. The Plaintiff suffers from Multiple Sclerosis (MS) which was diagnosed in 1998. The Defendant is in good health.

Plaintiff filed a Summons with Notice on September 2, 2004. Plaintiff served a Verified Complaint dated November 9, 2005 seeking a divorce based on Constructive Abandonment pursuant to DRL §170 (2). A Note of Issue and Certificate of Readiness were served and filed by the Plaintiff on August 19, 2005. The Plaintiff and the Defendant filed Statements of Proposed Disposition with the Court.

Grounds
The Plaintiff’s Verified Complaint alleges that for more than a one year period before filing the Summons and Notice the Defendant refused to engage in sexual relations with the Plaintiff. (See, Verified Complaint ¶ Sixth). The Plaintiff alleges that the refusal was willful and intentional and that the Defendant continued to refuse “without good cause or provocation … Criminal Defendant therefore disavowed his marriage to Plaintiff and constructively abandoned her.” Pursuant to DRL §170(2) a constructive abandonment is established if the evidence proves Defendant continuously, wilfully and without cause withheld sex from the Plaintiff despite repeated requests, for more than one year. The parties stipulated as to the ground for divorce and the Court conducted an Inquest on November 9, 2005.

The Plaintiff in her Complaint demanded a dissolution of the marriage, custody of the
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infant issue of the marriage, child support, exclusive use and possession of the marital residence until K. is eighteen years old, and equitable distribution of all marital property, if a divorce is granted.

The Court finds that the Plaintiff has submitted sufficient evidence to support her cause of action for a divorce based on Constructive Abandonment. The evidence submitted supports the Plaintiff’s Complaint for divorce since the Plaintiff’s testimony described a willful, continuous and without cause refusal to engage in sexual relations by the Defendant for more than one year. Jurisdiction has been established and Plaintiff has proven her claim of Constructive Abandonment and a judgement of divorce based on the ground of Constructive Abandonment under DRL§170(2) is hereby granted to the Plaintiff on her Complaint.

Stipulations
On December 12, 2005 the parties entered into a Stipulation of Settlement that issues of custody and visitation were resolved. This Stipulation was “so ordered” by the Criminal Court. A Final Order of Custody was granted to the Plaintiff and a Final Order of Parenting Time was granted to the Defendant. The remaining issues to be determined are child support, maintenance and equitable distribution of the assets of the marriage. The Court will address the classification, valuation and appropriate equitable distribution of the assets of the marriage. The Court shall determine the appropriate amount of child support for the non custodial parent to pay under the Child Support Standards Act (CSSA) and maintenance.

Marital Assets
The marital residence located at **, Glendale, NY was purchased by the parties during the marriage in October of 1996 for $225,000. The Plaintiff worked at Chase Manhattan Bank when the parties were first married and resigned from that position before the birth of K. Plaintiff has operated a day care center at the marital residence called L**** since 1997. The Defendant has worked as an Operating Engineer in a large commercial building in Manhattan since 1990. The parties were both previously married and divorced and have one child each from those marriages. The Plaintiff’s son, J., sixteen years of age, lived with the Plaintiff and Defendant in the marital residence. Plaintiff receives Social Security benefits for J. since his father passed away. Defendant makes child support payments of $200 a week for his son, C., pursuant to a court order of support by income deduction order.

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